IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,674
STATE OF KANSAS,
Appellee,
v.
ROBERT J. ENGELHARDT,
Appellant.
SYLLABUS BY THE COURT
1. Under K.S.A. 22-3418, a district judge's decision whether to permit a jury to view a crime scene is discretionary. An appellate court will not reverse such a decision unless it qualifies as an abuse of discretion that appears to have affected the substantial rights of the defendant.
2. K.S.A. 2004 Supp. 22-3405(1) requires that a defendant in a felony case be present at every stage of his or her trial, except as otherwise provided by law. Kansas courts have interpreted this provision to mean that a felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.
3. On the facts of this case, the jurors' silent walk through the trailer crime scene accompanied only by the bailiff did not constitute a critical stage of the proceedings against the defendant for purposes of K.S.A. 22-3405(1) or the Confrontation Clause and Due Process Clause of the federal constitution.
4. Under K.S.A. 60-455, three requirements must be satisfied to admit evidence of other crimes or civil wrongs, i.e., prior bad acts. First, the evidence must be relevant in proving one of the facts specified in K.S.A. 60-455. Second, the disputed fact must be a material fact. Finally, the probative value of the evidence must outweigh any potential prejudice. As long as these requirements are met, then this court reviews the district court's ruling under the abuse of discretion standard.
5. On the facts of this case, the district court's admission of evidence of the defendant's other bad acts did not constitute reversible error.
6. In a case involving intentional murder, the district court erred by giving jury instruction PIK Crim. 3d 54.06 (Responsibility for Crimes of Another -- Crime Not Intended) in conjunction with instruction PIK Crim. 3d 54.05 (Responsibility for Crimes of Another). However, the court's error was harmless in light of the overwhelming evidence supporting the verdict.
7. A district court must instruct the jury as to lesser included crimes where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in K.S.A. 2004 Supp. 21-3107(2). Under K.S.A. 2004 Supp. 22-3414(3), lesser included crime instructions need not be given if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offenses.
8. When a defendant does not object to the giving of or failure to give lesser included crime instructions, stating distinctly the matter to which the defendant objects and the grounds of his or her objection, an appellate court reviews any issue regarding the instructions under the clearly erroneous standard of review.
9. On the facts of this case, the defendant was not entitled to lesser included crime instructions on unintentional second-degree murder, voluntary manslaughter, or involuntary manslaughter because the evidence would not support a conviction on any of these crimes.
10. Due to the defendant's conviction on the greater offense under the facts of this case, the skip rule precludes reversal and protects the district court's decision not to give lesser included crime instructions on unintentional second-degree murder, voluntary manslaughter, and involuntary manslaughter.
11. In Kansas, absent a stipulation by the parties, the results of polygraph examinations are inadmissible in criminal proceedings.
12. On the facts of this case, the district judge did not abuse his discretion or violate the defendant's constitutional rights by limiting cross-examination of one witness.
13. No cumulative error merits reversal in this case.
14. In order for a new trial to be granted on the basis of newly discovered evidence, the evidence must not have been amenable to production at trial with the exercise of reasonable diligence, and there must be a reasonable probability that the evidence would produce a different result upon retrial.
15. The Kansas hard 50 sentencing scheme is constitutional.
16. When a defendant challenges the sufficiency of the evidence to establish an aggravating factor in a hard 50 sentencing proceeding, the appellate standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.
17. On the facts of this case, there was sufficient evidence to support the district court's finding that the murder was committed in an especially heinous, atrocious, or cruel manner.
18. On the facts of this case, the district judge did not abuse his discretion in weighing aggravating and mitigating factors affecting hard 50 sentencing.
Appeal from Harvey district court; CARL B. ANDERSON, JR., judge. Opinion filed September 16, 2005. Affirmed.
Michael P. Whalen, Law Office of Michael P. Whalen, of Wichita, argued the cause, and Mary Curtis, assistant appellate defender, was with him on the briefs for appellant.
Kristafer R. Ailslieger, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.
The opinion of the court was delivered by
BEIER, J.: Defendant Robert J. Engelhardt appeals his conviction for first-degree premeditated murder and his hard 50 sentence, raising several issues on appeal. This court has jurisdiction under K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).
Factual Background
Engelhardt was on parole but had not reported to his parole officer as directed. He lived in Wichita with his girlfriend, Michelle Drake, and his friends, Brian and Dorothy Smith. One evening Drake tried to telephone her mother, but Engelhardt became concerned that she was going to call the police and turn him in. Both couples began screaming. Drake described Engelhardt as "irate." Eventually they all left the house in Brian's car, with Engelhardt driving. At some point, Engelhardt stopped the car by the side of the road, and he and Brian got out to talk at the back of the car, discussing whether to kill the two women.
The group traveled to the trailer home of Engelhardt's cousin, Kevin Eveland, and Kevin's wife, Christina, in Newton, Kansas. Christina awoke to yelling outside the trailer. When she tried to wake Kevin, Engelhardt came in and told her and Kevin to get up and go into the living room. Michael Smith, an acquaintance of Kevin's, had come over to stay for a couple of days and was lying on the couch in the living room. Apparently, Kevin told Engelhardt that Michael had been in prison before. Michael awoke when Engelhardt and Brian started yelling at him, leaning over him, and asking him questions. Engelhardt, in a loud and threatening tone, asked Michael who he was, why he was there, if he had ever "done jail time," and if he was a "narc" who had been planted there by the cops. Michael was unable to answer the questions to the satisfaction of Engelhardt and Brian, who were both drunk and "out of control." At one point, Engelhardt made Michael lift up his shirt and pull down his pants so that Engelhardt could look for a recording device.
Engelhardt then went to the kitchen, came back into the living room, and demanded that Dorothy, Drake, Christina, and Kevin go to the trailer's back bedroom. The four of them did so, and Engelhardt and Brian stayed in the living room with Michael.
More yelling then emanated from the living room. Christina, who was pregnant, lay down on the bed in the back bedroom and held her hands over her ears. Kevin and Drake also had their hands over Christina's ears, and Kevin placed a pillow over her head because of Michael's screaming. Michael, sounding terrified, repeatedly said, "No." When asked later why she did not call the police, Christina testified that Engelhardt had directed them to unplug the phone when he first arrived. Engelhardt had said that "they were fighting," and he did not want the police to be called.
James Striplin also lived in the trailer. He was asleep in another bedroom and woke up when Engelhardt and the others arrived. From his room, Striplin heard arguing, crying, and yelling. He later testified that he heard a discussion with Michael about prison and a cemetery around a prison. He also heard Michael say, "No, no, no." Striplin stayed in his room because he thought Michael was being smacked around and "it wasn't [his] place" to get involved. When the screaming stopped it "just went quiet," and Striplin fell asleep.
During the attack on Michael and its immediate aftermath, Drake emerged from the back bedroom three times. The first time she walked down the hall toward the living room, looked in, and walked back to the bedroom. At that time, Engelhardt and Brian were hovering over Michael, and Michael was screaming; both Engelhardt and Brian were attacking Michael, but she could not see much because of the angle of the couch. When Drake came out a second time, Engelhardt took her back to the bedroom and told her to stay there. The third time Drake left the bedroom, the screaming had stopped. She walked out to the kitchen and saw Engelhardt and Brian standing there, both covered with blood. Engelhardt held a large bloody butcher knife in his hand. Drake walked over to Michael and found him dead; there was blood everywhere, and Michael was, using her word, "demolished." The entire event lasted 20 or 30 minutes.
Drake helped Engelhardt and Brian put Michael's body on a shower curtain and into the back seat of Michael's car. Engelhardt drove Michael's car into the country, and Drake and Brian followed in Brian's car. Engelhardt and Brian dropped Michael's body into a ditch. The two men then drove Michael's car (and Drake followed) to another location and left it. They returned with Drake to the trailer.
Christina later testified that, after the trailer got quiet, Engelhardt had come back to the bedroom and told her, Kevin, and Dorothy in a threatening tone to stay there until he returned. Engelhardt had blood on his clothes and his hands. Drake then left with him. When they returned, according to Christina, Engelhardt was covered "from head to toe" with blood. Engelhardt said Michael was there to "narc," so he "took care of the problem." Dorothy testified that Engelhardt said he had killed Michael.
Engelhardt told the others to clean up the trailer. In the living room there was blood on the walls, on the ceiling, in two puddles on the floor by the couch, and all over the couch. They dismantled the couch, tore out the carpet, and put everything that had blood on it into the back of Kevin's truck. Engelhardt and Striplin took the items in the truck and burned them.
Kevin went with Engelhardt to Wichita to get paint and carpet from the home of Paul Dickerson, Drake's former boyfriend. Kevin overheard Engelhardt tell Dickerson, "We just killed somebody." Dickerson later testified that Engelhardt said, "I killed somebody." Back at the trailer, Engelhardt told the others to tell police that the couch was gone because Striplin had fallen asleep on it with a cigarette and the couch had "burned up."
Michael's decomposing body was found 6 days after he was killed. He had been stabbed approximately 55 times in the head and chest. Michael's car also was found nearby, its keys still in the ignition. When evidence led police to the trailer, Kevin initially told them that Michael had left to get some food and never returned. When asked about the missing couch, Kevin and Christina said Striplin had fallen asleep with a burning cigarette and set the couch on fire, as Engelhardt had instructed them. However, after arson investigators started examining the scene, Kevin approached one of the detectives and said, "They killed a man on my couch, they stabbed him and we've been forced to help."
In Drake's original statements to police, she placed the blame for the killing on Brian. This was the story she, Engelhardt, Dorothy, and Brian had discussed and agreed upon. Engelhardt had told Drake she would go to jail for 40 years because she was an accessory; after the State granted her immunity, she agreed to testify against Engelhardt. According to Drake's testimony, Engelhardt told her he sliced Michael's throat and stabbed him in the heart to "put him out of his misery."
Brian testified against Engelhardt pursuant to a plea agreement in which Brian agreed to plead guilty to second-degree unintentional murder. Brian told police that he and Engelhardt had come up with a plan for Brian to take most of the blame for the killing; if witnesses became a problem, Engelhardt was to kill them. Brian said he had agreed to the plan to protect Dorothy and admitted to police that he "just goes off on people" when drunk. Brian further admitted that he and Engelhardt had been drinking on the night of the murder and said that they tended to "feed" off each other during altercations.
Brian had three different interviews with police. In all three he admitted that he was the first to stab Michael. And initially, as planned, he took the blame for the murder. By the time of the second interview, Brian said everything in his first statement was true except that he had left out that Engelhardt helped him "'do this dude.'" At some point, Brian also told police that Engelhardt was trying to lay the whole blame on him and that Brian did not understand why.
According to Brian, Engelhardt told Michael to answer his questions or Brian would kill him. During one police interview, Brian admitted to being the first to take a paring knife from a kitchen drawer. Then Engelhardt got a second paring knife and a butcher knife from the kitchen. In another version of Brian's story, Brian obtained the butcher knife from the kitchen. As Brian was stabbing Michael, Engelhardt told Brian to "cut him deeper." In yet another version of Brian's story, Brian said Engelhardt tried to pull him off of Michael and make him stop. Brian also said that, after he and Engelhardt had inflicted multiple wounds but Michael was still talking, Engelhardt said, "We have to kill him, we'll go to jail for what we've done." Brian said that was when Engelhardt cut Michael's throat and stabbed him in the chest.
Police discovered blood on Striplin's socks and shoes, and he eventually led police to the location where he and Engelhardt had burned the bloody items from the house. Officers also found seven knives at the burn site, including paring knives and a larger knife. They found another knife in a bag of trash near the trailer.
The State charged Engelhardt with first-degree premeditated murder, three counts of kidnapping, three counts of criminal threat, one count of battery, and one count of aiding a felon. The jury found him guilty of first-degree murder and aiding a felon; however, the district judge dismissed the conviction for aiding a felon as multiplicitous. The judge then sentenced Engelhardt to the hard 50 life sentence.
Jury View of Crime Scene
Engelhardt first contends the district judge committed reversible error by allowing the jury to view the interior of the trailer crime scene outside the defendant's presence.
Kansas cases have held that a district judge's decision whether to permit a jury to view a crime scene is discretionary. State v. Morton, 217 Kan. 642, 644, 538 P.2d 675 (1975); State v. Winston, 214 Kan. 525, 530, 520 P.2d 1204 (1974). And we have refused to reverse such a decision unless it qualifies as an abuse of discretion that appears to have affected the substantial rights of the objecting party. State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141 (1996).
This is the correct analysis under the Kansas statute that addresses jury views most directly, K.S.A. 22-3418, which states:
"Whenever in the opinion of the court it is proper for the jurors to have a view of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. They may be accompanied by the defendant, his counsel and the prosecuting attorney. While the jurors are thus absent, no person other than the officer and the person appointed to show them the place shall speak to them on any subject connected with the trial. The officer or person appointed to show them the place shall speak to the jurors only to the extent necessary to conduct them to and identify the place or thing in question." (Emphasis added.)
In this case, the State invoked this statute in its motion to permit members of the jury to walk through the trailer where the murder took place, asserting the jury view would assist the jury in understanding the amount of space in the trailer and its layout. Defense counsel objected, arguing the jury view would be a "critical stage" in the proceedings against Engelhardt, that the jury would be seeing evidence, and that Engelhardt therefore had a right to be inside the trailer during the jury view.
The district judge offered Engelhardt the opportunity to be present outside the trailer but ruled he would not be allowed inside the trailer because of its close quarters. Defense counsel rejected the judge's suggestion that Engelhardt could wait in a car across the street from the trailer so the jury would not see him in shackles. Defense counsel also rejected the prosecutor's suggestion that Engelhardt be permitted to stand outside the trailer with the judge and counsel for both sides.
Ultimately only the jurors were taken to the scene by the bailiff. They had previously been directed by the district judge to enter the trailer two at a time, walk to one end and back, and then get back on the county bus that had transported them. The judge had further admonished the jurors not to talk among themselves or touch anything in the trailer.
K.S.A. 22-3418 provides no absolute right for a criminal defendant to be present at a jury view of a crime scene. On the contrary, the statutory language is plainly permissive; jurors "may be" accompanied by the defendant on such a jury view, but the defendant's presence is not required. Given the space limitations of the trailer crime scene here, the district judge's admonition to jurors not to talk during the view, and Engelhardt's rejection of two reasonable suggestions that would have allowed him to be present just outside the trailer while jurors walked through it, we see no abuse of discretion under K.S.A. 22-3418.
This claim requires further analysis, however. Engelhardt also appears to argue that his absence from the jury view in this case denied him his state statutory right as well as his federal constitutional rights under the Confrontation and Due Process Clauses of the United States Constitution to be present at all critical stages of his trial. Claims that require us to engage in interpretation of statutes and constitutional analysis raise legal questions subject to unlimited review on appeal. See State v. Maass, 275 Kan. 328, 330 64 P.3d 382 (2003) (interpretation of statutes); State v. Rivera 277 Kan. 109, 113, 83 P.3d 169 (2004) (constitutional evaluation).
K.S.A. 2004 Supp. 22-3405 states that a defendant in a felony case "shall be present . . . at every stage of the trial . . . except as otherwise provided by law." This statute has been interpreted to mean that the defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is "'essential to a fair and just determination of a substantial issue." State v. Lopez, 271 Kan. 119, 130, 22 P.3d 1040 (2001); State v. Edwards, 264 Kan. 177, 197, 955 P.2d 1276 (1998); State v. Turbeville, 235 Kan. 993, 1002, 686 P.2d 138 (1984); State v. Rhoads, 20 Kan. App. 2d 790, 794, 892 P.2d 918 (1995).
In addition, the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require a defendant's presence at every critical stage of the criminal proceedings against him or her. Lopez, 271 Kan. at 129-30; see Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 (1970); State v. Mann, 274 Kan. 670, 680, 56 P.3d 212 (2002).
We have previously determined that the statutory command of K.S.A. 2004 Supp. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal constitution that a criminal defendant be present at any critical stage of the proceedings against him or her. See Edwards, 264 Kan. at 197 (holding defendant "has the constitutional right to be present at all critical stages of the trial" as codified by Kansas in K.S.A. 22-3405(1) and that "[i]n determining whether a proceeding is a critical stage, this court must examine whether the defendant's presence is essential to a fair and just determination of a substantial issue").
With regard to whether jury views should be regarded as a critical stage in criminal proceedings, State v. Stratton, 103 Kan. 226, 173 Pac. 300 (1918), provides guidance on this court's early 20th-century approach. In that case, this court upheld a jury's view of a crime scene when jurors were accompanied only by a court officer. The court rejected the defendant's constitutional claim in part because it determined he had waived his right to confrontation. In addition, however, the court cited Dean John Henry Wigmore for the proposition that a defendant's rights are not violated by a jury's inspection of a crime scene in his or her absence, because no witnesses are examined. Stratton, 103 Kan. at 227 (citing 3 Wigmore on Evidence § 1803 [see Chadbourn rev. 1976]).
Other Kansas cases have consistently upheld jury views outside the presence of defendants. See, e.g., Hickles, 261 Kan. at 88-89 (no prejudice); State v. Laubach, 220 Kan. 679, 681, 556 P.2d 405 (1976) (no error in district court's order for jury to view crime scene without first consulting defense, prosecution); State v. McCorgary, 218 Kan. 358, 363-64, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976) (no refusal absent showing of abuse of discretion affirmatively appearing to have affected defendant's substantial rights); State v. Zakoura, 145 Kan. 804, 812-13, 68 P.2d 11 (1937) (jury's view of crime scene in accordance with statutory procedure, approved practice; no error when defendant did not accompany jury); State v. Harris, 103 Kan. 347, 352-53, 175 Pac. 153 (1918) (unauthorized viewing does not "vitiate the verdict" unless inspection prejudiced defendant); State v. Adams, 20 Kan. 311, 323-26 (1878) (defendant waived right to confrontation; trial not temporarily transferred from courthouse to scene).
Engelhardt cites State v. Garza, 26 Kan. App. 2d 426, 431-32, 991 P.2d 905, rev. denied 267 Kan. 891 (1999), in general support of his contentions. Garza provides no assistance to Engelhardt, however, because that case did not involve a jury view. In Garza, the Court of Appeals examined whether the defendant's right to confrontation and due process were violated by his absence from two hearings in the courtroom.
Under the facts of this case, we hold that the jury view did not result in a violation of either K.S.A. 2004 Supp. 22-3405(1) or Engelhardt's federal constitutional rights to confrontation and due process. The parties are correct that the jury view enabled the jury to more fully appreciate the space available in the trailer and the distance between the place of the attack and the witnesses who had been in the bedrooms while the attack was taking place. It also permitted the jury to see the results of the clean-up job described by witnesses. However, the role of the jury view was strictly corroborative. Engelhardt's presence was not "essential to a fair and just determination of a substantial issue" and thus the jury view did not constitute a critical stage of the proceedings against him.
We are sensitive to the need for us to distinguish this case from our recent opinion in State v. Calderon, 270 Kan. 241, 245-46, 13 P.3d 871 (2000). This can be done both factually and legally. In Calderon, this court evaluated a defendant's claim that 22-3405(1) and his constitutional right to be present were violated because no interpreter was provided for him during the closing arguments at his trial. Factually, no jury view was in issue; the defendant was physically present, and the jury was in the courtroom. Legally, the issue before the court in Calderon was whether a defendant who cannot understand the language in which a proceeding is conducted is "present" in a constitutional sense. Here the issue is whether a particular jury view constituted a critical stage of the criminal proceedings. There was no question in Calderon that closing arguments constituted a critical stage, just as there is no question here that Engelhardt was not present at the jury view.
Finally, even if we were to determine there was statutory or constitutional error in excluding Engelhardt from the interior of the trailer during the jury view, that error would not merit reversal. Although Calderon indicated that a harmless error inquiry could be inappropriate in certain circumstances when a defendant had been excluded from a trial, see 270 Kan. at 248-53, subsequent cases have limited its structural error approach to its unique facts. See Mann, 274 Kan. at 682-84 (harmless error applies; defendant's absence from trial judge's conversation with four jurors did not "implicate a basic consideration of fairness or undermine the function of a criminal trial"); Lopez, 271 Kan. at 134 (harmless error rule applies; defendant absent from juror questioning in chambers not "denied a meaningful presence at a critical stage of his trial, nor did his absence . . . implicate the basic consideration of fairness or undermine the function of a criminal trial"). The Court of Appeals applied a harmless error analysis even in a situation far more similar to that before us in Calderon. See State v. Dosal, No. 89,436, unpublished opinion filed March 26, 2004. In Dosal, a defendant who could understand and communicate in English, as his second language, was not supplied with an interpreter during closing arguments. Because he could understand the proceedings, unlike the defendant in Calderon, the basic consideration of fairness was not implicated by the absence of an interpreter, and the court held a structural error analysis would be inappropriate. Dosal, Slip op. at 2-3.
In light of the overwhelming evidence against Engelhardt in this case, any theoretical error in excluding him from the jury view would have been harmless under any potentially applicable formula. See Chapman v. California, 386 U.S. 18, 21-22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (if appellate court able to declare beyond a reasonable doubt error had little, if any, likelihood of having charged result of trial, error harmless); State v. Kendall, 274 Kan. 1003, 1010, 58 P.3d 660 (2002) (errors not affirmatively causing prejudice to substantial rights of defendant, not preventing substantial justice deemed harmless).
Engelhardt also takes issue with the jury view on the independent grounds that it was cumulative and prejudicial -- cumulative because the State also admitted photographs of the trailer into evidence and prejudicial because his absence could have contributed to a jury perception that he was dangerous or a flight risk. Engelhardt cites no legal authority to support these arguments; we have previously rejected the first and see no logic in the second. In McCorgary, 218 Kan. at 364, we approved the use of a jury view as well as the admission of photographs of the scene. As for the possibility that Engelhardt's absence may have contributed to a jury perception of him as a flight risk or dangerous, we have no doubt that jurors seeing him inside the trailer in shackles and accompanied by police officers would have been led to a similar, perhaps stronger, perception.
Prior Bad Acts
Engelhardt argues the district judge erred by allowing the State to introduce evidence of his other crimes or civil wrongs, i.e., prior bad acts, specifically: (1) his parole status; (2) a photograph of Drake with bruises allegedly inflicted by him; (3) his use of Brian Smith's identification when stopped by police; and (4) his mug shot.
We have stated many times in the past that this court reviews the admission or exclusion of evidence under an abuse of discretion standard. See, e.g., State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). We have recently clarified this standard of review, reaffirming relevance as the first consideration of the district judge. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004); State v. Shelby, 277 Kan. 668, 679-80, 89 P.3d 558 (2004) (Nuss, J., concurring); State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004); State v. Bloom, 273 Kan. 291, 303, 44 P.3d 305 (2002); K.S.A. 60-407(f). Furthermore, "[o]nce relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." Carter, 278 Kan. at 77.
The principal rule on admission of evidence of other crimes or bad acts is K.S.A. 60-455. It reads:
"Subject to K.S.A. 60-447, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as a basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."